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1983-119 | 8/9/1983 | Kansas Attorney General Opinion | Robert T

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1983-119 | 8/9/1983 | Kansas Attorney General Opinion | Robert T August 9, 1983 ATTORNEY GENERAL OPINION NO. 83- 119 Fred W. Johnson Labette County Counselor 1712 Broadway Parsons, Kansas 67357 Re: Taxation--Mortgage Registration--Instruments Subject Thereto and Exemptions Therefrom Synopsis: (1) A mortgage registration fee must be collected before any mortgage of real property can be filed for record in the register of deeds' office. (2) An executory contract for the sale of real property which has the characteristics described in K.S.A. 79-3101 is a mortgage of real property for purposes of the mortgage registration fee statutes. Consequently, no such contract can be filed of record without payment of a mortgage registration fee. Moreover, since the law does not permit that to be done by indirection which cannot be done directly, a document, which incor- porates by reference, or which gives notice of the existence of the provisions of an executory contract for the sale of real property, cannot be filed of record without payment of a mortgage registration fee on the executory contract, unless such document is an affidavit of equitable interest as described in K.S.A. 1982 Supp. 79-3102(5). (3) To qualify for exemption under K.S.A. 1982 Supp. 79-3102(5), an instrument must be: (A) an affidavit; (B) signed and sworn to (or affirmed) by a purchaser of real property under an executory contract having the characteristics described in K.S.A. 79-3101; and (C) given solely for the purpose of providing notification by a purchaser of real property under an executory contract for the sale of real property of his or her interest in the real property. (4) A written instrument which gives notice of a purchaser's equitable interest in real property and which also creates a lien on that equitable interest is not an instrument described in the fifth exemption of K.S.A. 1982 Supp. 79-3102. Such an instrument is not given solely for the purpose of giving notice of a purchaser's equitable interest in real property. (5) Since the exemption provided for in K.S.A. 1982 Supp. 79-3102(5) is available only to a purchaser of real property under an executory contract for the sale of real property having the characteristics described in K.S.A. 79-3101, the exemption is not available to a person who lends money to a purchaser of real property under an executory contract for the sale of real property and claims a lien on the purchaser's interest in the real property as security for repayment of the money loaned. (6) If an instrument by which the purchaser of real property under an executory contract for the sale of real property mortgages his or her interest in the real property references the executory contract through which the purchaser acquired his interest in the property, instead of referencing an affidavit of equitable interest filed by such purchaser, then the instrument cannot be filed of record without a mortgage registration fee being paid on both the mortgage thereby created and on the executory con- tract through which the purchaser acquired his in- terest in the real property. (7) A mortgage of real property may secure both current indebtedness and future advances. However, a mortgage of real property which contains a future advances clause secures only the maximum amount stated in the mortgage. Consequently, the mortgage reg- istration fee due on any such mortgage should be based upon the maximum amount stated in the mortgage. Cited herein: K.S.A. 58-2221, 58-2336, 79-3101, K.S.A. 1982 Supp. 79-3102, K.S.A. 79-3107. Dear Mr. Johnson: You seek our opinion on whether certain written instruments may be filed of record in the real estate records of the Labette County Register of Deeds' office, without payment of the mortgage registration fee. The instruments about which you inquire involve purchasers of real property under executory contracts for the sale of real property and financial institutions that have lent money to those purchasers. One of the instruments is entitled: "AFFIDAVIT OF EQUITABLE INTEREST IN REAL ESTATE." It provides, among other things, that if two individuals: "are unable to complete the financial transaction for purchase . [of certain real property, the legal description of which is given], and fall into default as specified in the purchase contract for said property; [sic] they assign all rights held by them necessary to complete said purchase to . [a bank, on whose sta- tionery these provisions are typed] and further agree to allow the . Bank to take over any and all pertinent portions of the contract and agrees [sic] to support said Bank in any efforts of this endeavor. "Any interest . [the individual purchasers] may have in the above described real estate is further assigned and pledged to the . Bank. This interest in the property is pledged for collateral securing a loan that had pro- ceeds used for improvements on said property." (Emphasis added.) Although entitled "Affidavit of Equitable Interest," this document does not contain a certification by an appropriate public official that the statements made therein were given under oath or affir- mation. Consequently, this document is not an affidavit. The other instruments about which you inquire are companion documents which were prepared as part of a single transaction whereby a lending institution loaned money to a husband and wife who, prior to obtaining this loan, had entered into an exec- utory contract for the sale of real property as the purchasers thereof. Apparently, as a condition of making the loan, the financial institution required the borrowers to sign a document entitled: "CONDITIONAL ASSIGNMENT OF VENDEE'S INTEREST IN REAL ESTATE CONTRACT FOR SALE AND PURCHASE OF REAL ESTATE." This instrument, in part, provides that, for value received, the purchasers of the real property "conditionally assign, transfer and set over," to the financial institution, "all of their right, title and interest in and to the certain real estate contract," dated on a specified date and covering certain real property which is described. The instrument then prescribes that the assignment is executed and delivered to the financial institution "as collateral security to secure indebtedness now due by the undersigned and to secure such future advancements as may be made from time to time" to the borrowers. The other document submitted for filing is captioned "AFFIDAVIT OF INTEREST." It is a sworn statement by an employee of the financial institution that the financial institution is "the conditional equitable purchaser" of the real estate described in the "Conditional Assignment of Vendee's Interest" (i.e., the real property being purchased under contract by the borrowers), and that the affidavit: . is given for the purpose of providing notification that . [the financial insti- tution] has a conditional equitable interest in the real estate described above arising by reason of the conditional assignment . of the interest of Purchaser(s) . ." (Emphasis added.) This document concludes with a signed, sealed statement by a notary public that the document was subscribed, sworn to, and acknowledged before her. The financial institutions that have tendered these documents for filing claim that these documents may be filed without pay- ment of a mortgage registration fee because these instruments are affidavits of equitable interest and thus come within the fifth exemption of K.S.A. 1982 Supp. 79-3102. You question the claim of the financial institutions and believe that these instruments cannot be filed of record without a mortgage registration fee being paid. You are uncertain, however, as to the amount of mortgage registration fee that should be paid in regard to these instruments and ask us to give our opinion on this matter. In addition, you inquire, generally, as to what constitutes an affidavit of equitable interest under the provisions of K.S.A. 1982 Supp. 79-3102(5). Before considering your inquiries under the provisions of the mortgage registration fee statutes, K.S.A. 79-3101 et sr. / we feel obliged to first call your attention to K.S.A. -58 - 221. This statute specifies those instruments affecting real property which may be filed of record in the real estate records of the register of deeds' office. The statute, in relevant part, provides: "Every instrument in writing that conveys real property . or whereby any real estate may be affected, proved or acknowl- edged, and certified in the manner herein- before prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is sit- uated . ." (Emphasis added.) On numerous occasions, the Kansas Supreme Court has held that, under the provisions of this statute, only written instruments that convey or affect real estate, and which are acknowledged or proved, and certified as required by law are eligible for filing in the real estate records. See, e.g., Assembly of God v. Sangster, 178 Kan. 678, 682 (1955) and Horney v. Buffenbarger, 169 Kan. 342 (1950) and the cases cited therein at 347-348. We note that the document entitled "Affidavit of Equitable Interest" does not meet the requirements of K.S.A. 58-2221. Thus, this document is not eligible for recording, even if a mortgage registration fee in regard thereto is tendered. Having mentioned this related matter, we turn our attention to the provisions of the mortgage registration fee statutes. In K.S.A. 79-3101, the term "mortgage of real property" is defined as follows: "The words 'mortgage of real property' shall include every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property.
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